Watchdogs Propose Plan to Decisively Disqualify Donald Trump From Holding Future Elected Office
This article features Government Accountability Project and was originally published here.
Senate Majority Leader Chuck Schumer (D-NY) received a letter on Thursday signed by fifteen social justice and watchdog groups outlining how the United States Constitution explicitly disqualifies ex-President Donald Trump from ever holding elected office in the future – and what Schumer can do to ensure that necessary outcome.
The letter was drafted and submitted by Citizens for Responsibility and Ethics in Washington (CREW), Common Cause, the Constitutional Accountability Center, DemCast, Democracy 21, the Digital Democracy Project, the Equal Justice Society, Free Speech For People, the Government Accountability Project, Mainers for Accountable Leadership, MoveOn, the Civic Action Project on Government Oversight, Protect Democracy, Public Citizen, and Stand Up America.
“We write to you as a cross-partisan coalition of legal and advocacy organizations to urge you to recognize that President Trump is disqualified from future office under Section Three of the Fourteenth Amendment. Initially enacted in the wake of the Civil War and intended to apply to future cases, Section Three disqualifies from public office any individual who has taken an oath to uphold the U.S. Constitution and then engages in insurrection or rebellion against the United States, or has given aid or comfort to those who have,” the coalition wrote.
Trump was impeached for inciting an insurrection at the United States Capitol on January 6th and was acquitted in the Senate earlier this month. Because he was not convicted, Congress’s only remaining path to justice lies within this obscure constitutional statute.
“Impeachment, conviction, and disqualification might be considered the primary method for holding the former President to account, and prohibiting his return to public office. But it is not the only tool that the Constitution provides to address grave threats of this nature to the Republic,” they continued. “Section Three is another. Drafters of this provision were concerned that former Confederate leaders would use state and federal positions to corrode and subvert the fragile constitutional order at a time when the nation was just emerging from the Civil War.”
The organizations laid out a few scenarios through which Section Three could be applied:
Pass legislation that (a) includes findings and expresses its view that Section Three applies to former President Trump and (b) establishes a formal enforcement mechanism for federal courts to determine whether Section Three applies to former President Trump (i.e., judicial review) and any other office-holder who engaged in the January 6th insurrection.
Pass a resolution with factual findings and expressing its view that Section Three applies to former President Trump. Though a resolution would not have the force of law, it would cast a cloud over any future candidacy by Trump and provide grounds for further actions challenging a future candidacy.
Other actors could bring a court action to disqualify a future Trump candidacy under Section Three without a resolution from Congress. And, a court would ultimately determine whether Section Three applies. However, a congressional statement would provide powerful—and potentially critical—support for any such efforts. Further, it would eliminate any ambiguity as to whether Section Three is self-executing, which Trump as a candidate would certainly exploit.
The watchdogs also explained to Schumer that the 38 Republican Senators who voted to acquit Trump did so purely on procedural grounds no longer have a valid justification for letting Trump off the hook.
“Further, congressional action to reanimate Section Three and apply it to President Trump would be on sound constitutional footing,” they added. “It is the overwhelming consensus of legal scholars that neither the First Amendment nor the Bill of Attainder Clause insulate public officials, including the president, from the reach of Section Three.”
Trump and his defense team claimed that impeachment violated his right to free speech, which is simply false.
The experts warned that not invoking Section Three to punish Trump would give a green light to future uprisings.
“The former president may or may not instigate further insurrection or rebellion; but others, emboldened in the absence of consequence, surely will,” they concluded. “Section Three is meant to ensure that any future presidents or would-be office-holders are dissuaded from the notion that the U.S. will permit violent insurrections to contest the will of the people. Congress should expeditiously turn to a constitutional tool designed explicitly for this juncture.”